allowance, filed by appellant, it is shown, niture which she took with her when the that at the time of their marriage he owned separation occurred belonged to appellee; 80 acres of land then worth $45 an acre; that she owned one horse, one cow and calf, that when appellee's father's estate was set- and a few chickens, and no other stock tled she received therefrom $2,400, and that whatever; that she has no ready money appellant at that time bought 120 acres of and no available means with which to make land towards the purchase of which she her defense. gave her inheritance, and that some time [1-3] Thus is disclosed the most sordid thereafter he conveyed to her 50 acres of bickering between two who should long since the land so purchased, and that it was then have learned the lesson of mutual forbearworth $100 an acre, exclusive of timber on ance and should be spending together a

$ it, which timber, it was stated, appellee had placid evening of life in a peaceful common sold about three years before the applica- home. Perhaps, if a divorce should be intion for allowance for $3,000, and had also evitable, conditions are also shown upon which sold wood to the amount of $500; that dur- the just hand of a court of equity should be ing the time they lived together appellee had laid in making a proper division of property the income from the milk, poultry, and gar- between the parties. But the question beden produce, amounting to about $6 a week; fore us is whether, upon the facts disclosed, that in addition to this she had horses and the allowance can be sustained. It seems to cattle to the value of $400 or $500; that ap- be the contention of counsel for appellant pellant paid appellee the $1,000 allowed her that in a divorce action a trial court has on the separation and the $20 a month for authority to grant suit money or temporary a period of two years; and that when she alimony to the wife only when it is shown left him she took household goods of the val- that she has neither means nor credit with ue of $200. It is admitted that appellant which properly to prepare her suit or deowned at the time 150 acres of land worth fense for trial, and that, when it appears $90 an acre, $400 worth of personal property, that she has some means or credit, an aland $2,000 in money. It is averred that ap- lowance is an abuse of discretion which this pellant is willing to join appellee in mortgag-court will review. Such is not the law eiing or selling her land to raise money to ther under our statute or the common law. make her defense.

Our statute relating to the question before To this appellee responded by a verified us provides: “Pending a petition for distatement, in further support of her applica- vorce, the court, or the judge thereof in vation, in which it is averred that she possess- cation, may make

such orders reled certain personal property at the time of ative to the expenses of such suit as will her marriage with appellant; that she in- insure to the wife an efficient preparation of herited 40 acres of land which she held for her case and a fair and impartial trial four years, during which it produced $1,000, thereof." Section 1080, Burns 1908. after which she sold it for $2,500 on four The right of alimony, whether pendente years' time, at interest; that all this money, lite or permanent, is founded on the commonamounting to $3,500 or more, together with law obligation of the husband to support his $50 in cash which appellee received from wife and was recognized in ecclesiastical her mother, and $50 the value of a cow law. Subject to certain conditions, the wife belonging to appellee which appellant had is, in suits for absolute divorce, whether she sold, was used by appellant in the purchase be plaintiff or defendant, entitled upon apof the 120 acres of land referred to, which plication to temporary alimony where no was purchased when appellee was sick in statute provides for it. And it may be bed, and appellant took the title in his own awarded notwithstanding statutes which give name; that this purchase was made about her control of her separate property and the 20 years before, and appellant had the pos- benefit of her own earnings, although such session and profits of all of the land until in statutes materially lessen the force of the 1904, when he deeded appellee 50 acres of it reason upon which it is granted, and in such in consideration for the money so received case the allowance is not made so much as from her, and since then had received the a matter of course. It must be made to income of the residue of the 120 acres; that appear, as one of the essential conditions appellee used what she received from the upon which the wife will be granted the farm while she lived with appellant for allowance, that she has not sufficient means the support of the family, including the pur- to provide for her own support adequately chase of clothing for herself, the children, and to pay the expenses of properly preparand appellant. It is admitted that appellee ing and prosecuting or defending the action. did sell timber and wood off the 50 acres The ability of the husband to pay should aldeeded to her to the amount of $3,300, but so be made to appear. 14 Cyc. 743 to 761; it is averred $1,500 of it was loaned and 3 Am. & Eng. Encyc. of Pl. & Pr. pp. 139 to not available, as shown in her application 156; 2 Am. & Eng. Encyc. of Law, pp. 99 for the allowance, and that the residue was to 114; 2 Bishop on Marriage, Divorce, and used in settling the two daughters of the par- Separation, $$ 965, 978, 979. Whether the ties when married, and in necessary expend- necessity for the allowance exists, and the itures for herself; that the household fur- ability of the husband to pay, as well as the

102 N.E.-3

1

amount to be allowed, is within the sound | E. 1101; Sellers V. Sellers (1895) 141 Ind. discretion of the trial court to determine 305, 40 N. E. 699; McCue v. McCue (1898) upon the facts before it. This judicial dis- 149 Ind. 466, 49 N. E. 382. Counsel for ap: cretion is, it is true, subject to review on pellant rely upon the case of Kenemer v. appeal, but it will be interfered with only Kenemer (1866) 26 Ind. 330, as sustaining when a clear abuse of it by unfair and arbi- their contention for appellant in this case, trary action is shown. 14 Cyc. 749, 762; 2 but we think a careful consideration of

a Bishop on Marriage, Divorce, and Separa- what was there involved and decided shows tion, § 936.

that it does not. A case might be presented
Although the fact that the wife has some to this court for review where the relative
property is a matter to be considered by the financial condition of the husband and wife
court in determining whether an allowance was such that an allowance of temporary
shall be made, as well as the amount of it, alimony or suit money to the wife out of the
still, if it is not sufficient properly to sup- husband's estate would be an abuse of dis-
port her and at the same time afford her the cretion, and the wife would be compelled to
means to secure her an efficient preparation resort to her own estate for her support and
of her case and a fair trial without exhaust- expenses, even though she would be com
ing her own resources, an allowance is within pelled to sell or incumber part of it to do so.
the discretion of the court. 2 Am. & Eng. But we cannot say that the facts upon which
Encyc. of Law, p. 106; Hoffman v. Hoffman the trial court acted in this case are of such
(1868) 7 Rob.(N. Y.) 474; Merritt v. Mer- a character.
ritt (1885) 99 N. Y. 643, 1 N. E. 605; Rose

The judgment is affirmed.
v. Rose (1884) 53 Mich. 585, 19 N. W. 195;
Campbell v. Campbell (1887) 73 Iowa, 482,
35 N. W. 522; Harding v. Harding, 144 Ill.

(181 Ind. 87) 588, 32 N. E. 206, 21 L. R. A 310; Cooper v. CLEVELAND, C., C. & ST. L. RY. CO. V. Cooper, 185 Ill. 169, 56 N. E. 1059.

HAYES et al. (No. 21,616.)1
The rule declared to be sound and just by

(Supreme Court of Indiana. June 5, 1913.) Mr. Bishop in the sections of his work above

1. APPEAL AND ERROR (8 1040*)-HARMLESS cited is that, if the wife has no separate

ERROR SUSTAINING DEMURRERS TO ANincome or an inadequate one, the husband SWER. must contribute what, under the particular In an action for damages sustained by an circumstances, is just. If she has sufficient interstate shipment of mules, where two para

graphs of the complaint were based upon the in part, the husband must supply the resi- common-law liability and two upon a written due. Practical equality being the end at contract of shipment, made an exhibit of such which the proceeding aims, the “whole ques- paragraphs, the sustaining of demurrers to paration is regulated by the judicial, not the ar-graphs of the answer alleging nothing in addi

tion to the facts disclosed by the contract itself, bitrary, discretion of the court, for the guid- except that defendant's line did not extend to ance whereof natural reason, judicial prec- the destination of the shipment, and that the edent, and the wife's actual necessities shipper routed the shipment after it left deblend.” This statement of the law has here with the contract in evidence, these facts could

fendant's line, was not reversible error, since, tofore met the approval of this court in the have been shown under the general denial, as case of Davis v. Davis (1895) 141 Ind. 367, Acts 1905, c. 547, providing that any limitation on page 374, 40 N. E. 803, on page 806, by contract of a carrier's common-law liability where, referring to the rule stated by Mr. is a matter of defense which shall be

specifically

set up by answer, and which shall not be provBishop, it was said: “This is a wise and able under a general denial, is superseded as to humane provision of the law, and upon the interstate shipments by the Interstate Comtrial court is enjoined the duty to carefully merce Act. and properly exercise the discretionary pow- Error, Cent. Dig. $8 4089-4105; Dec. Dig. S

[Ed. Note.-For other cases, see Appeal and ers thereby granted. The law does not con- 1040.*] template that the husband shall be oppress, 2. CARRIERS ($ 177*)—CONSTITUTIONAL LAW ed by the allowance; neither does it intend

(8 302*)-CONNECTING CARRIERS-LIABILITY that where his means are ample the court OF INITIAL CARRIER. shall weigh the amount awarded in the Interstate Commerce Act Feb. 4, 1987, c. scales of an apothecary.' The statute means 104, $ 6, 24 Stat. 380 (U. S. Comp. st. 1901, 9:

3156), requiring common carriers to file schedand intends a sum sufficient to insure an ules showing all rates between different points efficient preparation and a fair trial. And on its own route and points on the route of any what is sufficient for the wife to obtain these other carrier where a through route and joint results the court, under all the facts and cir- rate has been established, and where no joint

rate over the through route has been establishcumstances in each particular case, musted to file the separately established rates apply. determine."

ing to through transportation, section 15, pro[4] That an allowance of temporary ali- viding that where two or more through routes mony or suit money to a wife having some per shall have the right to designate in writing

and through rates have been established the shipproperty or some credit is not necessarily by which of such routes the shipment shall be an abuse of discretion on the part of the transported, and that where competing lines of trial court has been decided by this court. railroad constitute portions of a through line or Grubl v.. Gruhl (1890) 123 Ind. 86, 23 N. I mine over which of the competing lines the

route the shipper shall have the right to deter

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexos

shipment shall be transported, and section 20,7. CARRIERS ($ 218*) CARRIAGE OF LIVE making carriers receiving property for trans- STOCK-ACTIONS-INSTRUCTIONS. portation to a point in another state liable for

In an action for damages to a shipment of any loss or damage caused by any common car-mules, under a contract requiring claims for rier to which the property may be delivered or damages to be made within five days after the over whose lines it may pass, do not take the removal of the stock from the cars, it was propcarrier's property without due process of law, er to refuse an instruction that the failure to since, even though the shipment is routed by file such claim within five days relieved defendthe shipper, under sections 6 and 15 no through ant of liability without any exception, and to shipment can be lawfully undertaken, even charge that if an opportunity to inspect the where there are two or more competing lines on mules when they were removed from the car was some portion of the route, unless a through refused by the carrier the five-day period would rate is fixed over each, and the initial carrier's not begin to run when the mules were unloaded. liability for the connecting carrier's negligence is based on the contract between the carriers Cent. Dig. $674-696, 927, 928, 933–949; Dec.

[Ed. Note. For other cases, see Carriers, and on the agency thereby created,

Dig. § 218.*i [Ed. Note.-For other cases, see Carriers, Cent. Dig. $$ 775–789, 791-803; Dec. Dig. 88. CARRIERS (8 230*) CARRIAGE OF LIVE 177 ;* Constitutional Law, Cent. Dig. $8 851–

STOCK-ACTIONS-INSTRUCTIONS. 856; Dec. Dig. $ 302.*]

An instruction stating the proper elements 3. CONSTITUTIONAL LAW (8 46*)-DETERMINA- of evidence to be considered in determining the TION OF VALIDITY-MOOT QUESTIONS.

question of what was a reasonable time in which In an action involving a through shipment to file claims for damages to a shipment was under a contract between carriers,

carriers, fixing proper, although the question of reasonable time through rates, a carrier could not raise the was for the jury, where the party complaining moot question of whether Interstate Commerce thereof had requested an instruction that the Act Feb. 4, 1887, c. 104, $ 20, 24 Stat. 386 (U. time fixed in the contract of shipment was reaS. Comp. St. 1901, p. 3169) amended by act sonable, especially as the instruction did not June 29, 1906, c. 3591, $ 7, 34 Stat. 593 (U. S. determine the question, but simply informed the Comp. Št. Supp. 1911, p. 1307), making initial jury of the matters which might be considered carriers liable for loss or injury by connecting in determining it. carriers, was constitutional, as applied to ship- [Ed. Note. For other cases, see Carriers, ments under the local rates of each carrier.

Cent. Dig. 88 961, 962; Dec. Dig. 8 230.*] [Ed. Note. For other cases, see Constitu

tional Law, Cent. Dig. $8 43-45; Dec. Dig. 8 9. CARRIERS ($ 211*) – CARRIAGE OF LIVE . 46.*]

STOCK - FOOD, WATER, AND REST STATU

TORY PROVISIONS. 4._CARRIERS (8 177*)–CONNECTING CARRIERSLIABILITY OF INITIAL CARRIER.

The twenty-eight hour law (Act June 29, Interstate Commerce Act Feb. 4, 1887, c. 1906, c. 3594, 34 Stat. 607 [U. S. Comp. St: 104, § 20, 24 Stat. 386 (U. S. Comp.’st.

1901. Supp. 1911, p. 1341]) is for the prevention of p. 3169) amended by Act June 29, 1906, c. 3591; cruelty to animals, and is not primarily for § 7, 34 Stat. 593 (ů. S. Comp. št. Supp. 1911, the benefit of shippers of live stock, but is rep. 1307), making initiai carriers liable for loss strictive of their rights, and cannot be waived or damage by connecting carriers, but permitting by them, except in the manner and upon the them to recover from the connecting carrier re contingencies provided in the act. sponsible for the loss or injury, is not invalid as [Ed. Note. For other cases, see Carriers, imposing the costs, expenses, and attorney's fees Cent. Dig. $$ 926–928; Dec. Dig. $ 211.*] incurred in defending a case, or ascertaining where and how the loss occurred on the initial 10. APPEAL AND ERROR ($ 231*)_OBJECTIONS carrier, since by vouching in the carrier respon- IN LOWER COURT-EVIDENCE—CARRIAGE OF sible for the loss, or giving it notice to defend, LIVE STOCK_LIMITATION OF LIABILITY. the party responsible for the loss may be de- In an action for damages to a shipment of termined and the responsibility transferred to it. mules, where defendant relied on a contract lim

[Ed. Note.-For other cases, see Carriers, iting its liability, the admission of evidence that Cent. Dig. 88 775–789, 791-803; Dec. Dig. Šthe shipper was not notified that there was more 177.*]

than one rate with differing liabilities, over an 5. CARRIERS (8 119*) LIABILITY FOR INJURY not reversible error, although the shipper was

objection not stating any specific grounds, was OR LOSS—ACT OF GOD OR PUBLIC ENEMY.

bound to know of the two rates, and the carrier Interstate Commerce Act Feb. 4, 1887, c. 104, § 20, 24 Stat. 386 (U. S. Comp. St. 1901, there was evidence that the carrier's agent had

was not bound to inform him thereof, where p. 3169), amended by Act June 29, 1906, c. 3591, no authority to accept shipments under the $ 7, 34 Stat. 593 (Ů. S. Comp. St. Supp. 1911, common-law liability, and if the shipper had dep. 1307), providing that common carriers re- clined to ship under the contract, although ceiving property for transportation to a point charging a higher rate, would still have used a in another state shall be liable for any loss, contract which would have made the shipment damage, or injury thereto caused by it, or by at the shipper's risk, since if in view of that any common carrier to which the property may evidence the contract was void the evidence obbe delivered, or over whose lines it may pass, jected to was harmless, and if the contract was does not render carriers liable for injuries caused not void the evidence was nevertheless not inadby an act of God or the public enemy.

missible on its face, and could nọt be complained [Ed. Note.-For other cases, see Carriers, of in the absence of a specific objection. Cent. Dig. 88 523-530; Dec. Dig. $ 119.*]

[Ed. Note. For other cases, see Appeal and 6. APPEAL AND ERROR (8 928*)-PRESUMPTIONS Error, Cent. Dig. 88 1299, 1352; Dec. Dig. 8 IN SUPPORT OF JUDGMENT.

231.*] Where the evidence was not set out, it would be assumed that instructions refused were 11. CARRIERS ($ 218*) - CARRIAGE OF LIVE inapplicable, and that those given fully covered STOCK-ACTIONS-EVIDENCE. and were applicable to the facts.

A contract of shipment limiting a carrier's [Ed. Note. For other cases, see Appeal and common-law liability is void, where the carError, Cent. Dig. 88 3749-3754; Dec. Dig. & rier's agent is not authorized to accept ship928.*1

shipper has therefore no opportunity to ship, paragraph of answer is (a) that the contract except under a limitation of liability.

was fair and freely entered into by Hamilton [Ed. Note. For other cases, see Carriers, after he had been given a bona fide and full Cent. Dig. && 674-696, 927, 928, 933–949; Dec. opportunity to ship at a fair rate, without

SS Dig. § 218.*)

limitation of the common-law liability by Appeal from Circuit Court, Decatur Coun- which he secured a less rate, alleging it to ty; Marshall Hacker, Judge.

be the kind of contract usually made, and Action by Cephas S. Hayes and another the consideration the agreement to transport against the Cleveland, Cincinnati, Chicago & according to the terms of the contract, and St. Louis Railway Company. Judgment for that the latter was reasonable; (b) that by plaintiffs, and defendant appeals. Affirmed. the terms of the contract a verified claim for

Davison Wilson, of Greensburg, and Car- damages was required to be made within ter & Morrison, of Shelbyville, for appellant. five days from the time the stock was reHugh Wickens and John E. Osborn, both of moved from the cars, and that such claim Greensburg, for appellees.

was not filed; (c) that the damages arose

from overloading, crowding, kicking, suffoMYERS, J. Action by appellees against cating, and fright, which were released by appellant for damages alleged to have been the terms of the contract. sustained upon shipment of a car load of The third paragraph is the same as the mules from Greensburg, Ind., to Atlanta, second, except that it omits any allegations Ga., January 14, 1907.

of damages from "overloading, crowding, The complaint is in four paragraphs. The kicking, suffocation, and fright," but avers first and third count upon a common-law that appellant did not undertake to carry liability, while the second and fourth count beyond Cincinnati. upon a shipment under a written contract, The fourth paragraph is the same as the made an exhibit of each of those paragraphs. third, except that it alleges that it only unNo question is presented as to the complaint. dertook to carry to Cincinnati, and there de

Appellant filed four affirmative paragraphs liver to a connecting carrier, known by the of answer, to the fourth and fifth of which terms of the contract as the Queen & Cresdemurrers for want of facts were sustained. cent Line, and that appellant had no line beA paragraph in general denial was also filed. yond Cincinnati, and the other line did conThe second paragraph of answer counts uponnect Atlanta and Cincinnati, and that it dethe same contract as the second and fourth | livered the stock in good condition to the paragraphs of complaint, a general bill of connecting carrier, and that no loss or inlading for the shipment of the mules from jury occurred while in appellant's possesGreensburg, Ind., to Atlanta, Ga., by one sion, and that they were afterward injured, Hamilton, who was made a defendant and if at all, and that appellant did not underfiled a disclaimer, it being alleged in each take or contract for the negligence of anparagraph of the complaint that immediate other carrier, and that the clause of the Inly after the bill of lading was issued to terstate Commerce Act attempting to make Hamilton as consignee he had sold the mules it responsible is invalid, because (a) it deto appellees before they were injured, though prives appellant of its property without due it is alleged in each of the two paragraphs process of law, and (b) it attempts to take counting upon the written contract that its private property from it without its conHamilton delivered the mules to appellant sent and give it to another. for and consigned to appellees, and in the The fifth paragraph is the same as the contract itself is a clause wherein appellees fourth, except that it alleges that "Hamilton by name acknowledge their option to ship selected the route over and by which said on a limited liability contract, in which re- mules were to be shipped after they left despect the copy of the contract set out in ap- fendant's road." pellant's brief does not correspond to the The errors relied upon are the action of copy in the record, or the copy relied on by the court in sustaining demurrers to the appellant.

fourth and fifth paragraphs of answer. The exhibit, with the complaint, sets out a [1] It has long been the settled rule prior written memorandum signed by Hamilton, to the going into effect of the Act of 1905 directing the delivery of the mules to appel- (Acts 1905, p. 58) that where a complaint, as lees. This memorandum is not set out as a the first and third paragraphs, counts upon part of the exhibit filed by appellant. There an oral contract of shipment of property it is also a discrepancy between the contract may be shown under the general denial that as set out by plaintiffs and the one counted it was under a written contract and defeat on by appellant, in that in the copy set out recovery. Snow v. Indiana, etc., Co., 109 by the latter, with its answer, is a copy of Ind. 422, 426, 9 N. E. 702; Bartlett v. Pittsassumption by Hamilton, as man in charge, burgh, etc., Co., 94 Ind. 281; Hall v. Pennof all risk of injury in transportation, which sylvania Co., 90 Ind. 459; Lake Shore, etc., is omitted from appellees' exhibit.

Co. v. Bennett, 89 Ind. 457, 471; JeffersonThe basis of the defense under the second ville Co. v. Worland, 50 Ind. 339; Indianapolis, etc., Co. v. Remmy, 13 Ind. 518; Penn- \ mules for shipment from one state to ansylvania, etc., Co. v. Walker, 29 Ind. App. other, it was liable for any loss, damage, 285, 64 N. E. 473; Parrill v. Cleveland, etc., or injury caused by appellant, or by any Co., 23 Ind. App. 638, 55 N. E. 1026; Stew other carrier over whose line the shipment art v. Cleveland, etc., Co., 21 Ind. App. 218, passed, whether such loss, damage, or injury 226, 52 N. E. 89; Sanders v. Hartge, 17 Ind. occurred on appellant's line or on the line App. 243, 46 N. E. 604; Baltimore, etc., Co. of some other carrier between the two points. V. Ragsdale, 14 Ind. App. 406, 42 N. E. 1106; The fourth instruction defines the duties Indianapolis, etc., Co. v. Forsythe, 4 Ind. prescribed by the act of Congress in regard App. 326, 29 N. E. 1138. This was only an to common carrier .feeding, watering, and application of the rule that where an oral resting animals in shipment, and quotes secor implied contract is declared on there cantion 1, Act of Congress June 29, 1906, C. be no recovery upon a written contract, and 3594, 34 Stat. 607 (U. S. Comp. St. Supp. whenever a written contract is sued on re- 1911, p. 1341). covery cannot be had upon an oral or implied The objection urged to these instructions contract. Paris v. Strong, 51 Ind. 339; Penn- involves the validity of the act, the grounds sylvania, etc., Co. v. Walker, supra; Sanders of objection being stated thus, with referv. Hartge, supra; 4 Encyc. Pl. & Pr. 922-927. ence to all three, as raising the same ques

We have recently held the act of 1905 su- tion: (1) Because it assumes to make the perseded by the Interstate Commerce Act appellant, as the initial carrier, liable for (Act Feb. 4, 1887, c. 104, 24 Stat. 379 [U. S. the wrongful act or default of the connectComp. St. 1901, p. 3154]), as applied to inter- ing carriers which were not the agents of apstate shipments. Wabash Ry. Co. et al. v. pellant, and over which the appellant had no Priddy et al. (1913) 101 N. E. 724, No. 21,970, control. (2) Because it assumes to make at last term.

the appellant, as the initial carrier, liable As to the facts set up in the fourth para- for a loss occasioned by the connecting cargraph, they were such and such only as the riers, and against which loss the appellant contract itself disclosed, except the fact that expressly contracted it should not be liable. appellant had no line of its own from Cin- (3) Because it assumes to make the appellant, cinnati to Atlanta, and as to the fifth para- as the initial carrier, liable for a loss OCgraph the only facts alleged which were not casioned by the act of God or the public disclosed by the contract itself were that ap- enemy, while the property was in the pospellant's line did not reach Atlanta, and session and control of connecting carriers. that Hamilton routed the shipment after it (4) Because it assumes to make the appelleft appellant's line; but with the contract lant, as the initial carrier, liable for a loss in evidence these facts could have been occasioned by a connecting carrier, and asshown under it, and under the general denial, sumes to give the appellant the right to reif they constituted a defense, under the rule cover from such connecting carrier the that anything may be shown under that plea amount of the judgment obtained by the apwhich will disprove what a plaintiff is bound pellees against the appellant; but if the conto show, and if under the contract there was necting carrier is insolvent, or is permitted no liability, under those facts a defense to show that the loss was occasioned by the would be made out, so that there could be act of God or the public enemy, the appelno reversible error in sustaining the demur- lant cannot recover against it, and is de rers to those answers.

prived of its property to the extent of the Upon the motion for a new trial complaint judgment obtained against it by the appelis made of the giving of instructions Nos. lees. (5) Because it assumes to make the 2, 3, and 4, requested by appellees. It is connecting carrier liable to pay the judgment conceded by appellant that these instructions obtained against the appellant, as initial present the one question whether the Inter-carrier, and thus attempts to bind the constate Commerce Act, in fixing liability upon necting carrier by a judgment to which it is the primary carrier, violated the fifth and not a party, and to take from it the right fourteenth amendments to the federal Con- to show that the property was not injured stitution, as depriving appellant of its prop- while in its possession or under its control, erty without due process of law.

or that it was injured while in its possession Instruction No. 2 is to the effect that, as or under its control by the act of God or the the property involved in this suit was trans- public enemy. (6) Because it assumes to ported from a point in one state to a point compel the appellant, as the initial carrier, in another state, this would constitute inter- to enter into a contract or to assume a liabilstate commerce, and the liability and duty ity against its will, and concerning a matter of the railroad company in regard to such that is not a regulation of commerce between shipment is regulated by the law of the Unit- states. (7) Because it assumes to allow the ed States, and that the act of Congress is shipper to select the connecting carrier, and as follows, and sets out the Carmack Amend to compel the appellant, as the initial carrier, ment (Act June 29, 1906, c. 3591, § 7, 34 Stat. to ship the property over the road of such 593 [U. S. Comp. St. Supp. 1911, p. 1307]). connecting carrier, and to become responsible

The third instruction informs the jury for the acts of the shipper's agent. (8) Bethat if it finds that appellant received the cause it assumes to compel appellant, as the